Police Reform and Social Responsibility Bill

Memorandum submitted by Punch Taverns plc (PR 80)

1.Introduction

2.We believe that Punch Taverns is in a uniquely qualified position to make a valuable submission as not only do our 6,770 premises cover every Local Authority area in England and Wales but we also have significant experience of both the application process and the enforcement procedure currently in force.

3.The Ministerial Foreword to the consultation document entitled "Rebalancing the Licensing Act" acknowledges that the majority of licensed premises are "well run businesses, which provide a valuable service to their local community and the Government recognises the important role which pubs can play as part of the fabric of communities and villages. Whilst tackling alcohol related crime is a priority for the Government, it should not be addressed at the expense of these many responsible businesses".

4.We would continue to urge the Government to recognise the key role that pubs play in the responsible retailing of alcohol within well regulated environments. Our Leased and Managed estates remain committed to responsible retailing and we continue to work closely with them to ensure that key regulations are understood and enforced. It is our broad view that there is minimal need for additional regulation in this area as we believe that the Licensing Act 2003 gives sufficient safeguards to ensure that the pub industry is well regulated.

5.We are disappointed to note that the thrust of the proposed legislation is that the existing legislation is in some way incapable of dealing with the concerns that the Government have regarding alcohol, and crime and disorder. It is accepted by the Government in the Ministerial foreword to the consultation document entitled "Rebalancing the Licensing Act" states that the majority of licensed premises are well run businesses. This is, we believe, in part due to the 2003 Act and the safeguards contained within it.

6.Executive Summary

Our key areas of concern include but are not restricted to the following sections of the Bill which we will expand on later on in this document.

Clause 103 – Licensing Authorities becoming a Responsible Authority

This is a source of real concern. The proposal makes the Licensing Authority effectively both applicant (and objector) and then judge and juror and raises serious issues with regards to natural justice.

We have concerns that Primary Care Trusts and Local Health boards would relate to the consumption of alcohol national or regionally without regard to the premises or the individuals themselves.

Clause 105 – Removing the Vicinity Test

Sole determining issue as to who may make a relevant representation should be a degree to which a resident or business can demonstrate they are affected by particular application.

Clause 109 – Reducing the evidential burden on Licensing Authorities

If the evidential burden is reduced as suggested, from "necessary" to "appropriate" it will clearly be easier to impose conditions on premises licences, not just on the licences of those irresponsible premises but on those of the well run businesses as well.

Clause 118 – Underage sales

The existing 48 hour closure period works "well" and is very salutary to the operator and the staff affected and gives the opportunity for additional staff training where required. We believe this is sufficient as under current legislation.

Clause 119 – Early Morning Restriction Orders

We believe existing powers in place are sufficient to combat poorly managed premises.

Clause 124 – Late Night Levy

On the basis it is accepted that well run premises will be unfairly prejudiced by the levy, by paying a levy to help resolve a problem that they do not cause.

Summary

7.Clause 103 - Licensing Authorities as Responsible Authorities

It is our view that making the Licensing Authority a responsible authority will not assist in achieving the Government's stated aims of this legislation. We would question the degree to which it is appropriate to allow the determining authority to themselves make representations to an application which they will later adjudicate upon. It should be for those who have made representations to convince the committee that conditions, limitations, etc should be imposed on the premises licences.

Given the fact that it is proposed in clause 105, that anyone ("other persons") may make a representation, the views of the community and possibly beyond it (or those who wish to express one) will be available to the licensing committee. For a Licensing Authority to also adopt a further role of "prosecutor", may well call in to question the whole process.

Rightly or wrongly, the foregoing may generate the sense that the outcome has been determined long before the matter has come to be openly considered and that perception, (whether legitimate or not), undermines the trust and confidence that all stakeholders must have in such a system. If the only representation to an application were to come from the Licensing Authority, without any objection from any responsible authorities or interested parties, this puts the committee in a difficult position. In order to find for the applicant, they would have to determine that the representation raised by their own officer was in some way illegitimate or inappropriate.

We do not believe it is necessary or appropriate to include Licensing Authorities as a responsible authority for the reasons stated above.

Whilst we accept that it may be appropriate, dependent upon the individual circumstances of particular matters, for Primary Care Trusts and Local Health Boards to be involved in the licensing process, it is not our view that it is appropriate for them to be a responsible authority.

There are a number of consequences of such designation. We would make the following observations:

Firstly, there will be a cost to be borne, not only by applicants, but also by the Primary Care Trusts and Local Health Boards and the Licensing Authority, simply through involvement in the licensing process.

Secondly, their designation as a responsible authority appears to diminish, or perhaps we should say avoid the hope or expectation of individuals taking personal responsibility for their actions. Concerns that may be expressed by a Primary care Trust or Local Health Board would, it is expected, relate to issues regarding the consumption of alcohol nationally or locally, without particular regard to the premises or the individuals themselves. We are committed to responsible retailing and whereas it may be appropriate, in particular (perhaps exceptional) circumstances for a Primary Care Trust and Local Health Board to make a representation as an interested party (or "other person") which they are perfectly entitled to do currently, this proposal appears to serve no particularly useful purpose.

The experience that we have of our Scottish premises and the licensing reform recently undertaken, supports our view that the issues of health have confused and undermined licensing decisions, making the individual needs of the local community or the merits of the individual premises, secondary to quasi philosophical issues such as the health of the nation, levels of alcohol consumption and the number of licensed premises in a particular area.

9.Clause 105 - Premises licences: who may make relevant representations.

It appears to us that the sole determining issue as to who may make a relevant representation should be the degree to which a resident or business can show that they are affected or will be affected should a particular application be granted. We do not imagine that it is intended that persons in Brighton should be permitted to make representations in respect of licensing applications regarding premises in Burton upon Trent.

The impact of a local community public house might be quite different, to the impact that say a music festival would generate and across a quite different "vicinity". We would suggest that vicinity should only be used as a guide toward assisting officers in considering those who may be affected by an application and not the sole determining feature. We accept that if there is an element of doubt as to whether a person or business is affected or could be affected by a licensing application, the representation should be deemed relevant.

It should be recognised that removing the vicinity test could possibly lead to a significant increase in the volume of hearings to be determined by Licensing Authorities. That said, our experience in Scotland, is that those who make representations are those who are or who feel they may be affected by the granting of a licensing application. They are made by people and/or business who are located in relatively close proximity to the premises in question. To date, we have not had experience of persons located in Dundee making representations about licensing applications made in Dumfries.

We do not see the need or indeed the benefit to be derived to local communities by permitting persons located (in theory) many of hundreds of miles away from a licensed premises to make a representation about an application relating to it.

It is also important that the ability of Licensing Authorities to consider representations as frivolous and vexatious, so as to exclude them from their deliberation, is not fettered.

Similar observations might be made in respect of "Clause 106 - Premises licences: who may apply for review"

10.Clause 109 - Reducing the burden: premises licences

Currently, a Licensing Authority, on determining an application, may only impose (or modify) conditions on premises licences, exclude a licensable activity, reject the application, etc, if it is necessary to do so in order to promote one or more of the licensing objectives.

We do not accept that this evidential burden, acts in such a way as to unreasonably restrain or fetter the discretion of licensing authorities in coming to just and fair determinations.

From our experience, local communities have a strong voice which is clearly heard and taken into account when applications are being determined. The Government accept that the majority of licensed premises are well run businesses that provide a valuable service to their local communities. This suggests that in the majority of cases the correct balance has been struck when determining applications for licensed premises.

It must be borne in mind that:

·There is a cost associated with complying with conditions that are imposed on licences. The cost can be modest, such displaying a sign asking patrons to leave a premises quietly, or quite large, such as employing door staff, installing CCTV and noise limiters. The cost of employing two door staff, for five hours a night, for two nights a week, will costs a business over £20,000.00 per annum. CCTV systems and noise limiters will on average cost a premises in the region of £10,000.00 to purchase and install.

·The failure (be it innocently or otherwise) to comply with a licensing condition can result in a premises being closed immediately, the premises licence being reviewed and the risk of a prosecution being pursued under to section 136 of the 2003 Licensing Act (Penalty - fine £20,000.00 and/or 6 months in prison).

It is submitted that these burdens should not be imposed on licensed premises unless it is necessary to do so in order to promote one or more of the licensing objectives.

If the evidential burden is reduced as suggested, from "necessary" to "appropriate" it will clearly be easier to impose conditions on premises licences, not just on the licences of those irresponsible premises but on those of the well run business as well. Presumably, this is not what is intended when the Government said in The Ministerial Foreword to the consultation document entitled "Rebalancing the Licensing Act" that "Whilst tackling alcohol-related crime is a priority for the Government, it will not be addressed at the expense of these responsible businesses."

What could be considered as an alternative is reducing the evidential burden for licensing authorities in respect of review, summary review and review applications following closure orders as they are by their nature directed against premises which may be considered to be not well run.

11.Clause 118 - Selling alcohol to children

In the case of Punch Taverns Plc, this section puts the company at risk of prosecution should one of its tenants and/or their staff sell alcohol in breach of it. Punch Taverns Plc take their responsibility as a premises licence holder very seriously and in no way condone or excuse the sale of alcohol to children, we would question whether it is proportionate to increase the maximum fine from £10,000.00 to £20,000.00. We believe that the current fine of £10,000.00 represents a sufficient punishment and deterrent.

Most of our lessees have in place robust systems to avoid sales of alcohol to underage persons and where such sales occur, it is usually not a case of wilful determination to sell or lack of educational training, but an error of judgement by the frontline member of staff. The existing 48 hours period works "well" and is very salutary to the operator and staff affected and gives the opportunity for additional staff training where required.

If current experience is a guide, the period which will be proposed that the prohibition on selling alcohol covers, will be the proposed maximum period. For most premises, ceasing selling alcohol for up to 336 hours (14 days) will represent a substantial loss of income. One may find that rather than accept a prohibition on selling alcohol for 336 hours, enforcing authorities will be required to elect to prosecute under section 147A. Others will no doubt come to a view on whether this would represent a good use of resources. It is noted in the consultation document entitled "Rebalancing the Licensing Act", the period referred to was 168 hours (7 days).

12.Clause 119 - Early morning restriction orders

It is proposed that an early morning restriction ("order") may apply for the period between 00.00 and 06.00am. A large number of premises applied to vary their premises licences (successfully) during the transitional period under schedule 8 of the 2003 Act and since, so that they would be permitted to sell alcohol and provide other licensable activities beyond 00.00. These applications were made in good faith and not inconsiderable expense was incurred in making them. Quite often, further expense was incurred in complying with conditions imposed at the determination of the applications. The applicants, will have all had a reasonable expectation that if they operated a well run business they would continue to be able to trade the hours they successfully applied for. It was no doubt a further expectation, that they would not be deprived of the entitlement to trade the hours secured, should a licensing authority decide otherwise.

The order is a very blunt instrument. Whilst a licensing authority may be able to decide the order will apply to all of its area or only part of it, there will undoubtedly be many well run premises that will be adversely affected should an order be made. The making of an order will also have unintended consequences for the employees of the premises affected, door staff employed at the premises and others. This proposal appears to contradict the Ministerial Foreword to the consultation document entitled "Rebalancing the Licensing Act" that states that the proposed shift in the licensing regime would not be at the expense of responsible businesses. We consider it would be a retrograde step to reintroduce the equivalent of a terminal hour based on location, not how the premises is run.

Where there are businesses that do not trade responsibly in the early hours, procedures and processes currently exist which can deal with those businesses; measures that are fully supposed by the trade where they are justified.

The order imposed from Midnight would also have a direct effective on Bank Holiday and the Festive season celebrations, since we assume the order could not to be over-ridden by use of Temporary Events Notice and would similarly negate previous permissions granted.

If the Government persists with this particular element of the proposed legislation, we strongly suggest that the period that may be specified in the order, begins no earlier than 03.00 and ends no later than 06.00am, as was originally intended.

13.Clause 124 - Late night levy requirement

We believe the levy, like the early morning restriction order is a very blunt instrument. It will not distinguish between well run premises and those that are poorly run. It is noted that it is proposed that a licensing authority will not be permitted to decide that the levy is to apply in only part of its area. The levy, may therefore, apply to all premises in its area that sell alcohol between 00.00 and 06.00. We trust that the Government is not suggesting that all premises’ that sell alcohol between 00.00 and 06.00 are badly run and contribute to crime and disorder. On the basis it is accepted that well run premises will be unfairly prejudiced by the levy, by paying a levy to help resolve a problem that they do not cause, the justification for the levy already begins to look questionable.

The legislation as currently framed, would mean that if a levy was adopted by a licensing authority, it would apply to all premises in its area, both urban and rural, large and small, well run and not well run.

It is our view that the means to deal with badly run premises already exists in the 2003 Act, reviews, summary reviews, closure of premises in an identified area and closure of identified premises.

If the Government persists with this particular element of the proposed legislation, we strongly suggest that:

·The late night supply period begins at or after 03.00 and ends at or before 06.00;

·The levy may apply to parts only of a licensing authority area in line with the proposal for early morning restriction orders;

·The levy is applied on a pro rata basis to reflect the number of nights per week that each premises is entitled to sell alcohol beyond the start of the late night period chosen by the individual licensing authorities. Therefore a premises that is permitted to sell alcohol 7 nights a week beyond the start of the late night period, would pay 7/7ths of the levy and a premises that was only permitted to sell alcohol two nights a week beyond the start of the late night period, would only pay 2/7th of the levy. It is accepted that some weighting may apply to premises that sell alcohol beyond the start of the late night period on weekends

·Many pubs already have permission through their licence, often ‘grandfathered’ in the transition to the new Licensing Act in 2005, to open for 36 hours over the New Year Period. Under these provisions, such premises will become liable for any late night levy charged in the local authority area, even if this is the only night of the year when they remain open beyond Midnight. This would be unfair to charge a full Late Night Levy fee for trading past Midnight for one night of the year